From The Hollywood Reporter:
CBS Radio must again contend with a lawsuit brought by ABS Entertainment, owner of recordings by Al Green and others. On Monday, the 9th Circuit Court of Appeals wiped out an eye-opening 2016 summary judgment ruling by a trial court in CBS’ favor that raised the prospect that music owners could enjoy perpetual copyright because remastered versions were independently copyrightable. In the decision, the appeals court concludes that the judge shouldn’t have ruled so quickly for CBS and casts doubt on whether remastered sound recordings exhibit enough originality to be copyrightable.
For decades, radio broadcasters didn’t have to compensate sound recordings owners for performance.
But then, owners of older recordings — those authored before Congress conferred federal copyright protection for sound recordings — asserted claims of misappropriation under state laws. Like SiriusXM and Pandora, CBS Radio has faced a wrath of litigation for broadcasting iconic songs from the dawn of the rock era.
In response to the lawsuit, CBS made a bold and novel argument. The broadcaster made the point that older recordings were mainly distributed through vinyl, and what the broadcaster now performs is really remastered versions, eligible for its own copyright protection. As such, any state misappropriation claim is preempted by federal law, and owners of pre-1972 recordings don’t have any claim for compensation.
. . . .
“We conclude that the district court erred in finding a lack of a genuine issue of material fact about the copyright eligibility of remastered sound recordings distributed by CBS and improperly concluded that ABS’s state copyright interest in pre-1972 sound recordings embodied in the remastered sound recordings was preempted,” he writes.
Judge Linn acknowledges that derivative works do enjoy independent copyrightability, but focuses the question on originality and whether the author of a derivative work has contributed something that is creative and easily recognizable as distinct from the original. He points to guidance from the U.S. Copyright Office that mere changes in format, declicking and noise reduction don’t warrant separate copyright protection.
. . . .
“If an allegedly derivative sound recording does not add or remove any sounds from the underlying sound recording, does not change the sequence of the sounds, and does not remix or otherwise alter the sounds in sequence or character, the recording is likely to be nothing more than a copy of the underlying sound recording and is presumptively devoid of the original sound recording authorship required for copyright protection,” states the opinion . . . . “Such a work lacks originality.”
. . . .
The trial judge is faulted for placing too much reliance on CBS’ musicologist expert who attempted to explain how listeners of remastered versions would perceive changes to timbre, spatial imagery, sound balance and loudness. The 9th Circuit derides these bits as “technical improvements,” and while devoting some space to credit the contributions of recording engineers and producers, the panel of judges are leery of extending copyright too far.
Link to the rest at The Hollywood Reporter
In addition to the obvious copyright law implications, the OP reminded PG of the sometimes substantial difference between the copyright attitudes of West Coast creative individuals and the organizations they work with and those of comparable (at least with respect to copyright) East Coast individuals and organizations.
West Coast creatives (and their lawyers) tend to be much more persnickety and obsessive about the nature of copyrights and the scope of rights granted by a copyright holder. This is why West Coast copyright disputes – often related to music and movies – tend to be litigated with some frequency (by intellectual property standards).
OTOH, East Coast creators – often authors of books or other writings – and their advisors tend to be more blasé about grants of rights based upon their copyrights.
For example, the typical Big Publishing publishing contract grants extremely broad rights to the publisher for the full term of the copyright with an extraordinarily low bar for the publisher’s reciprocal obligations to the creator. If the publisher pays the agreed-upon advance and publishes a copy of the author’s book, the publisher has essentially locked up a wide range of rights to the book and derivative works arising therefrom for the rest of the author’s life plus 70 years in the US.
PG has used geography to distinguish between two different habits of copyright-based businesses, not to disparage anyone for where they live or work, but rather to contrast what have become the common practices with respect to creators in the movie and music industry (West Coast) and those in the traditional publishing industry – books and periodicals (East Coast).
While differences in West Coast media and East Coast media are substantial and the comparison is not completely fair, PG notes that typical working creatives involved in West Coast copyright-based industries are likely to earn more money from their creations than typical working creatives in East Coast industries relying on copyrighted creations.
While starving screenwriters are not hard to find in Los Angeles, starving authors are also common in New York.
But PG could be completely wrong. Commenters are, as usual, free to dissent or identify factors PG has foolishly overlooked in his maunderings.
More litigation because the power/money of the parties are closer to equal.
It follows Uncle Jo’s Rule: The power of the parties outweigh the letter of the law.
It’s basically a wordy version of ‘money talks’.
There’s another, critical factor: Who litigates, especially under the 1976 Act?
In the west, the vast majority of copyright matters that are not “about” piracy and other unlawful (or at least allegedly so) distribution of entire works are between corporations, and less than half the time (thumbnail estimate) do they involve the actual human “creator”(s). There’s also a substantial union presence in the background. Further, copyright jurisprudence in the west was almost entirely about derivative works until the 1960s or so, meaning that it didn’t have as much chance to fossilize (although aspects of it still have).
In the east, one side in 1976 Act litigation is almost always the creator or the creator’s direct representative; it’s actually rare to see full-on clashes of corporate titans in copyright matters. Unions are negligible* in copyright matters, primarily because the divisions of responsibility among the various unions are, umm, less clear… meaning that they don’t stick their necks out. (And this is even more apparent around N’ville than around N’yawk.) More to the point, copyright doctrine in the respective courts of appeals is fossilized around principles laid down under the 1909 Act, and the courts refuse to revisit the prior authority. All of this also fits with the particular kind of litigators one finds in the east doing copyright litigation.
I’ve done extensive litigation and negotiation in both the west and the east, and I’m not saying one is superior to the other — only that they are different, and that many of the differences come from who’s playing.
* Both in terms of actual presence… and competence. But that’s for another time.
Sadly, authors and publishers of books make a lot less money than those in music and visual media so we have a lot less money to pay lawyers. You don’t get into a gun fight if you can’t afford a gun. Music and some visual media also have more reuse and money-making possibilities in everything from ads to digital enhancement.
Problem is: If “mere changes in format, declicking and noise reduction don’t warrant separate copyright protection” — which is probably a fair assessment — then we may be facing a future in which every popular recording is not just remastered but modified to include new, copyrightable elements. From now on, every old record may be revised to include Darth Vader wailing “Noooooo!”